By: Kavina Nagrani, Associate
“No, Client A, the government does not receive all of your assets automatically if you die without a Will”;
“No, Client B, the term “attorney” under your POA document does not refer to your lawyer”;
“No, Client C, there will not be a formal Will reading at the lawyer’s office in front of all living beneficiaries when you die.”
Certainly, as an estates lawyer, you have communicated either one or all three of these phrases more than once in your career, and so have we!
This is part I of a two-part blog series that addresses key terminology used in the “estates space”—terms that we come across each day, but that are nevertheless quite anachronistic and obscure to most Ontarians.
Along the way, we provide comments about which of these terms remain important and necessary, and which have become effectively redundant or overly “legalistic”.
Much of the procedures and, in turn, terminology, in estates law are heavily grounded in centuries of legal and economic history. This makes for great intellectual debates among lawyers, judges, and academics, but it can cause real confusion and informational imbalances amongst many, if not most, Ontarians who are not faced with such esoteric terms and concepts in their daily lives.
As a result of this, clients come to us with misconceptions about wills, estate planning and estate administration generally.
“Testator” and “Testamentary”
A “testator” is quite simply the person who executes a given Will (such that, if Mr. Smith makes a will, Mr. Smith can be referred to as the “testator” of the Will). In the past, it was common for a femininized version of the term, “testatrix”, to also be used. This has become very anachronistic, however. Moreover, while the term “testator” remains common, note that it is just as common for a testator to be referred to as the “deceased” or the “deceased person” once he or she has died.
The term “testamentary” is an adjective that can be used to describe a document or action that is intended to transfer or affect legal and property rights and obligations upon one’s death. This means that a Will is a testamentary instrument because its effect is to transfer a testator’s property interests to others upon his/her death. Similarly, the making of a beneficiary designation can be considered a ‘testamentary disposition’.
“Last Will” versus “Last Will and Testament”
Historically, a testament dealt with the disposition of a deceased’s personality; that is, solely her personal property, and not her real estate. A will, on the other hand, dealt with the disposition of real property. This distinction is what led to the practice of naming one’s testamentary document a “Last Will and Testament”.
Today, because Ontario’s laws of estates and succession generally treat real and personal property similarly, it suffices for a testamentary document to simply be called a “Will”.[1] Nevertheless, the old practice still remains relatively widespread to this day, and you may often see or hear about Wills entitled “[Jane Doe’s] Last Will and Testament”, even though there is no legal requirement for such titles. Perhaps some clients/lawyers may simply like that extra sprinkling of historical formality. Clients whose mother tongue is a Romance language do prefer this, considering that the word “Will” in Italian/Spanish/French/Portuguese is: Testamento/Testamento/Testament/Testamento.
Personal Representative
In the context of estates and succession law, a personal representative can be a deceased’s executor or an administrator. More on these two latter terms, below.
Executor versus Estate Trustee with a Will
An executor is a person or entity (e.g. a professional corporate trustee) named/appointed in the deceased person’s Will to administer the deceased’s estate in accordance with the Will and any other ancillary documents. While today, this term refers to both male and female executors, in the past, a femininized version of the term, “executrix”, was also used.
In Ontario, however, an executor is now more formally recognized as an “Estate Trustee”—or, in full, an “Estate Trustee with a Will.” This creates some confusion among clients because, practically speaking, the terms “executor” and “Estate Trustee” refer to the exact same office.
Why is this the case?
Essentially, while the term “executor” remains with us due to both historical traditions and select existing Ontario legislation (such as the Estates Act,[2] RSO 1990, c E 21), the term “Estate Trustee” is how the role is referred in Ontario’s Rules of Civil Procedure,[3] as well as across the Ontario court system for the purposes of the probate process. This is why, for instance, today’s equivalent of a “probate certificate” in Ontario is referred to as a “Certificate of Appointment of Estate Trustee With a Will”.
In short, in Ontario, an executor is an Estate Trustee, and vice-versa. (Although, many clients may prefer using the term “executor” rather than “Estate Trustee With a Will”!)
Administrator versus Estate Trustee without a Will
An administrator is a personal representative appointed by the court when the deceased dies without a will (i.e. intestate), fails to appoint an executor in her Will, or whose executor(s) named in the Will is unable or unwilling to act. Administrator appointments are prescribed in section 29 (and other ancillary and related sections) of the Estates Act.[4]
Similar to the situation in Ontario respecting executors, the Rules of Civil Procedure refer to an administrator as an “Estate Trustee” or, more correctly:
- An “Estate Trustee Without a Will” if the deceased leaves no Will; and
- An “Estate Trustee With a Will” when an “administrator with Will annexed” is appointed (i.e. when a Will exists but does not appoint an executor, or the appointed executor(s) is unwilling or unable to act.)
This is why the administrator-specific equivalent of a “probate certificate” is referred to as a “Certificate of Appointment of Estate Trustee Without a Will” when the deceased leaves no Will.
Once appointed, the administrator’s duty is to administer the deceased’s estate: (i) in accordance with the Will, or (ii) in accordance with the intestacy regime provided for in the Succession Law Reform Act:[5] if the deceased died without a Will or if there remain Estate assets which are not or cannot be disposed of via the Will.
Concluding Remarks
While there are many (and more esoteric!) concepts that we have not included above—such as the administrator de bonis non administratis, the executor de son tort, or the grant ad collagen bona—we hope that this blog helps to clarify and de-mystify some of the common terminologies we deal with in this fascinating, yet complex, area of law.
Stay tuned for Part II of this blog post, in which we clarify misconceptions about powers of attorney documents, and de-mystify some common terms used in the realm of substitute decision making.
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Thank you for reading!
[1] Albert Oosterhoff et al., Oosterhoff on Wills, 8th ed (Toronto: Thomson Reuters, 2016), at 20 – 21; See also James H.G. Sunnucks, et al., Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 20th ed. by John Ross Martyn and Nicholas Caddick (London: Sweet & Maxwell/Thomson Reuters, 2013), at 5.
[2] RSO 1990, c E 21.
[3] RRO, Reg 194.
[4] Supra note 2.
[5] RSO 1990, c S 26.
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